Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.

Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Monday, 30 April 2018

I blog only occasionally on motoring matters cf criminal behaviour by drivers. As is often said of law breakers, ignorance of the law is no excuse. It is a long time since I paid more than a cursory glance at what the Daily Express had to say but for many drivers and car owners the times are a changing.

Thursday, 26 April 2018

A chief Constable will be appearing on 24 May 2018 at Westminster Magistrates court on a Health and Safety prosecution. Although unrelated it is interesting to note that the Home Office has refused to release figures on the numbers of senior and chief police officers found guilty of misconduct. In the light of current matters at said Office this blogger is of the opinion as a previous incumbent made clear that it needs a thorough overhaul of policy, personnel and oversight i.e. it is not fit for purpose.

Monday, 23 April 2018

When
sitting with colleagues recently appointed I occasionally reminded them that we
had a duty of public protection ensconced within the formulaic information
overload that they were doing their best to absorb. It was a
function that was rarely if ever mentioned in any training course and one with
which most new colleagues could immediately feel comfortable as they
were faced for the first or second occasion when the custody threshold had been
breached. For many the realisation that their decision meant that a fellow
citizen`s liberty was being taken from them was a
sobering moment. Such decisions and the structured
approach employed to achieve them were perhaps most significant when it came to
deciding if a custodial sentence could or should be
suspended. The pressures on so doing were and are
enormous. At all levels from Secretaries of State to L/As via PSRs
and trainers, the lower courts in particular are being “asked”
to employ some form of rehabilitative requirement and to eschew
immediate custody.

There is,
arguably, a common perception…..misconception?.......that those who commit
serious criminal offences are sentenced too leniently. In real
terms such comments are often related to offenders whose custodial sentence is
suspended. Custody suspended is a disposal only when the custody
threshold has been breached i.e. the offence is so serious that only custody is
appropriate and that it is inappropriate to impose a stand alone community
order or fine or any other non custodial sentence. The obvious effect of
such a sentence is that it might act as a deterrent against future offending
within the period of suspension because the default position in that event
would be immediate activation of all or part of the sentence. I
have copied below the relevant section of the original guidance on breaches of
a suspended sentence.

C. Breaches2.2.15 The essence of a suspended sentence is to
make it abundantly clear to an offender that failure to comply with the
requirements of the order or commission of another offence will almost
certainly result in a custodial sentence. Where an offender has breached any of
the requirements without reasonable excuse for the first time, the responsible
officer must either give a warning or initiate breach proceedings.31 Where
there is a further breach within a twelve-month period, breach proceedings must
be initiated.32
2.2.16 Where proceedings are brought the court has several options, including
extending the operational period. However, the presumption (which also applies
where breach is by virtue of the commission of a further offence) is that the
suspended prison sentence will be activated (either with its original custodial
term or a lesser term) unless the court takes the view that this would, in all
the circumstances, be unjust. In reaching that decision, the court may take
into account both the extent to which the offender has complied with the
requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may
activate it in full or with a reduced term. Again, the extent to which the
requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison
sentence, it must either make the requirements more onerous, or extend the
supervision or operational periods (provided that these remain within the
limits defined by the Act).34 In such cases, the court must state its reasons
for not activating the prison sentence,35 which could include the extent to
which the offender has complied with requirements or the facts of the
subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied
with the requirements imposed) commits another offence, it may be more
appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence
for which the suspended sentence was passed, it may justify activating the
sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive
to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider
whether it is appropriate to activate the suspended sentence at all.

Where the court decides to amend a suspended sentence order rather than
activate the custodial sentence, it should give serious consideration to
extending the supervision or operational periods (within statutory limits)
rather than making the requirements more onerous.

The problem with SSOs is that there is an underlying prescription within the
Ministry of Justice that prison sentences are to be avoided and that such
sentences should be reserved for those most likely to be harmful to the citizen
going about his lawful business. However since the riots of 2011 and the
ongoing stirring up of fear of terrorism those whose actions threaten the
stability of the state appear also to be subject to increasingly harsh
immediate custodial sentences. My experience of structured sentencing is
that many legal advisors when presented with a bench`s decision of immediate custody
will offer “advice” that perhaps there is enough wiggle room to suspend the
sentence. The whole analysis of deciding if an offender having clearly
breached the custody threshold should be mitigated to that sentence being
suspended is thrown into disarray by sentencing at crown courts. About
16% of sentences for either way or indictable only offences receive community
orders. That includes those offenders who elect trial by jury and those sent
there for sentencing from the lower court.

Sensational headlines like this are nothing
new. But there is no doubt the whole process of a suspended custodial
sentence is a very hot potato. Sentencers only chip away to its underlying
principles as best as they can in order to use it justly for all involved.

The
latest twist in the saga of suspending custodial orders has been revealed by
the Sentencing Council. Incidentally I sometimes wonder whether this
organisation is the wagging tail of the public opinion dog. Whatever its
anatomical relationship to the concept of sentencing once more it is changing
direction as this report of a circular
released by its chairman Lord Justice Treacy reveals.

“Evidence suggested that part of the
reason for this could be the development of a culture to impose suspended
sentences as a more severe form of community order in cases where the custody
threshold may not have been crossed.

“In such cases, if the suspended
sentence order (SSO) is then breached, there are two possible outcomes –
neither of which is satisfactory. Either the courts must activate the custodial
sentence and the offender then serve time in custody even when it may never
have been intended that they do so for the original offence. Or the court could
choose not to enforce the suspended sentence, thereby diminishing the deterrent
power of such orders.”

Treacy added: “A suspended sentence is
a custodial sentence and not a more severe form of community order. They can
only be imposed where the court has determined first that the custody threshold
has been crossed and second that custody is unavoidable ... At that point the
court may then undertake a weighted assessment of the various factors which may
lead the court to consider that it is possible to suspend the sentence.”

In short all this hoo ha stems from the
failure of some sentencers and probation officers to follow a recommended
sentencing structure in which a suspension of a custodial disposal can take
place when and only when the custody threshold has been breached.
It would make more sense if all those involved followed the practice
intended. Even those with some influence seem to be mesmerised by this
topic. Penelope Gibbs, the director of Transform Justice, who
has seen the circular, fears it could lead to judges giving more prison
sentences if they are discouraged from using suspended sentences.

She said: “I completely understand
the desire of the Sentencing Council to increase community orders. But banning
the probation service from recommending suspended sentence orders is not the
right strategy. If a suspended sentence is not recommended, judges may use a
prison sentence instead, and we know that short prison sentences are
ineffective”

The only conclusion I can arrive at is
that the simple sequence in a structured sentencing policy that would satisfy
the original and not unreasonable reasons for the option of suspension of
custody has been ignored and needs to be re-visited.

Wednesday, 18 April 2018

I have blogged on the topic of fines a few times over the years Indeed insert fines into the search box and they can be read by anyone interested. All this came back to me on reading of the £86K fine to multi millionaire entertainer Ant McPartlin for drink driving. It would appear that he was fined at Band B [100% of weekly income admitted at £130K] with one third reduction for early guilty plea. Considering the damage done to a third party it was surprising he wasn`t also charged with careless or dangerous driving in addition. Be that as it may, the financial imposition will make absolutely no difference to his current or future life style. Surely the public humiliation of community service would have been more appropriate in his case and for others whose vast fortunes and/or incomes render financial penalties a sanction without meaning.

Monday, 16 April 2018

By now I would imagine that anyone remotely connected with the workings of our courts will be aware that dozens of barristers` chambers are refusing to undertake legally aided work to represent defendants in crown court. That it has come to this is a sad situation. Despite repeated warnings to the MOJ by the criminal bar that the financial returns especially for those recently called are such that practitioners could not continue subsidising their state underfunded work government refused to act. Now the Law Society has issued its guidance to solicitor advocates to consider carefully their position. In the magistrates` courts where 95% of criminal cases begin and end magistrates have been aware for years of the iniquities within a system that attempted for example to exhort unrealistic payments from defendants found guilty; 2015 Criminal Courts Charge; legislation so burdensome and ill conceived that it was repealed. Along with many other inefficiencies there was widespread concern that defendants were pleading guilty only because they feared the financial costs of going to trial and being found guilty. It is thought that as many as 20% of trials are conducted with a bench of two; a further sign of problems over the horizon. Yet J.P.s` representatives have been silent about the difficulties and problems of which they are all well aware. Their parrot like response is that justice would be imperilled if they entered the political arena. I would opine that magistrates have themselves allowed justice to be denied to many by their very avoidance of stating clearly and loudly that the courts system with all that that entails is not fit for purpose. They paid lip service to the closure of hundreds of courts thus increasing costs for witnesses despite the fake news published by the MOJ on increased travel times. They whimpered when that Criminal Courts Charge came into being exactly three years ago for its short lived existence. Magistrates considering their having no financial interest in their occupation of the bench could demonstrate that their concern for justice overrides the passive position they have traditionally taken. They don`t. They assert that justice would be sacrificed if they involve themselves in the politics of justice. To use once often quoted phrases that once distinguished our summary justice system but no longer are guaranteed to exist...........level playing field, equality of arms etc when the rules change changes to the game are inevitable. The change which I hope and believe will eventually happen is that the bench in the face of unreliable CPS operatives and unrepresented defendants must come off the fence and become inquisitorial in the manner of many continental benches. Failing that there cannot possibly be justice for all as we have proudly proclaimed for many decades.

Friday, 13 April 2018

Those who inhabit our courts system have been getting more air time and media attention over the last few months than normally has been the case. Most of the shortcomings now affecting justice have not materialised out of the ether or from rubbing a magic lamp; they began almost exactly eight years ago. In 2009 I began this blog on a site now long since departed the cyber world but I did save all the posts. I have copied below such a post which should demonstrate that what we are now experiencing was evident in embryonic form when all the legal world was supposedly hunky dory.

The Ministry of Justice is closing
Magistrates` Courts at quite an alarming rate. The driving force is the need to
reduce costs. Various reasons are added to the mix to lesson the raw impact of
that political word; "cuts". It is being said that crime is falling
but that depends on what figures one believes. It is widely recognised that by
allowing police officers and laterally uncle Tom Cobley and all to issue
various forms of fixed penalties offender numbers at court are greatly reduced.

Over twenty thousand cases annually are
tried as either way offences at Crown Court. It has been suggested that if
Magistrates` Courts were allowed to increase their sentencing powers to twelve
months custody many more matters would of course be brought within their
jurisdiction. These sensible options had they been effective would have
eliminated a difficulty which receives virtually no publicity; the backlog of
Crown Court trials.

Officials at Bradford Crown Court are
wrestling with just this problem. Instead of the usual 450 trials within the
system there are 750 pending. Court manager Adrian Marshall said the situation
was due to an increased number of cases being committed to them by magistrates,
but the reasons for that were unclear. It seems to me, a distant observer with
no inside knowledge, that there is only a limited number of perfectly obvious
reasons some primary and some secondary. Of the former;
not enough courts, not enough judges, increased criminal activity. Secondary reasons are; increased numbers of defendants in either way matters opting for Crown Court
trial by judge and jury instead of summary trial before magistrates under utilised Magistrates Courts which could be remedied by increasing powers
as above

The court manager at Bradford
Magistrates` Court is quoted as saying,“I can’t establish a reason why there
has been this increase, but the feeling I get is there is more serious crime
coming through, and I think there are more sexual offences occurring.” That
answer doesn`t fill this observer with confidence. Once again it appears that whilst justice
per se is still generally of a very high standard and the practitioners
involved working very hard sometimes for minimal financial reward the
administration of said justice is often shambolic. However all this
maladministration is usually below the waterline of public awareness. How many
more Bradford Crown Courts are there?

Wednesday, 11 April 2018

When I was active as a chairman I rarely if ever used the pronouncements as listed in the Bench Book. I was not an actor with a script; I spoke to witnesses and defendants as I would have liked to have been addressed were I in their position. Most of all it meant that simple English was used that would be understood readily without need for further explanation unless of course a witness had English as a second or third language. The chairman of the bench at Flintshire Magistrates’ Court at Mold, was to the point when he told an offender, "you were conned". He was referring to so called advice given by this firm of solicitors. A clap on the back from me to the chairman. Read all about it.

Tuesday, 10 April 2018

For the last week many barristers have refused to undertake legally aided briefs at crown court. They have been driven to this desperate action by the miserly rates of pay offered by the Ministry of Justice. I am not proposing to discuss the rights and wrongs of this action but to point out the lack of coverage in many? most? national media including TV. Indeed although most days I catch bits of Sky, BBC and Channel 4 news programmes the lack of reports appears suspiciously like news management from Petty France where the MOJ has since 2010 been conducting the emasculation of our once heralded justice system. It seems that no news is the watchword. However in the week when the Home Secretary tries to assert that drastic falls in the numbers of police officers have no significance with regard to the increase in knife crime, a view which has been demonstrated doubtful to say the least, especially in London it is instructive to discover that this major department of state described by a former Home Secretary John Reid a decade ago as being "unfit for purpose" lied to parliament and the public when Theresa May was in charge. In 2016 against many opposing views the government legislated that schools had to collect data on their pupils` nationality and country of birth. Many groups and organisations and parents refused to co-operate. During this time the Home Office then under our current prime minister`s regime made it clear that the information to be collected by the Dept of Education would not be passed to its (Home Office) control for immigration purposes but that it was needed to help pupils whose first language was not English. This was an out and out lie that was recently discovered under freedom of information legislation by Schools Week.Such actions are a disgrace to what we still consider to be our democratic way of life. It gives credence to conspiracy theorists who would see the country under the control of Jews, Masons and all manner of beings bent on reinforcing those misguided individuals` irrationality and prejudices. This is apparent now within the Labour Party where discussion once taboo is being repeated as fact; where it is acceptable to demonise groups; where scum like Nick Griffin a nazi apologist is intending to vote Labour. See tweet below.

When government is and is seen to be lying through its teeth the bells should be ringing out loud and clear that, as the late John Laurie of Dad`s Army fame was wont to put it; "We`re doomed, we`re all doomed".

Friday, 6 April 2018

I have posted from time to time on jurors and juries. Use the search box if required to find a few previous contributions. According to an interesting piece in the "Conversation" juror problems are on the increase. Apart from a fact that really annoys me insofar as jurors do not have to be British citizens nor demonstrate their ability to comprehend possibly intricate constructions in the English language a juror`s individual knowledge which is in conflict with evidence is not addressed. My own professional experience and knowledge when I was active was in direct contradiction of a witness`s evidence. This was not knowledge gained by using the Internet or a reference book which is expressly forbidden for magistrates just as it is for jurors; it was in my memory and for justice to be done I informed my two colleagues with 100% certainty that the witness had lied. If I had been a juror would demonstrating that knowledge have led to my being reported to the judge and held for contempt?With the secrecy of the jury room more closely guarded than a papal conclave I do not know the answer. With judicial hints that judge only trials are likely for one reason or another to become more common such a minor point as above might assume increased significance. As eligible citizens we have a right to know where the boundaries are?

Thursday, 5 April 2018

The recent case of a doctor being struck off after being convicted of manslaughter by gross negligence has been the subject of much interest from Twitter lawyers and medics. I offered my own view at the time that in order to retain public confidence the conviction and subsequent decision to remove her registration was correct. Now she has been granted an appeal against the ruling by the General Medical Council. It seems much substance will be made of the institutional failings within the NHS which contributed to a great extent in her failure to perform her duties adequately and led to the tragic death of a child in her care. It appears to be another case to be excused by an ism. It began when Stephen Lawrence, a black British man from Plumstead south
east London was murdered in a racially motivated attack while
waiting for a bus in Well Hall Eltham on the evening of 22 April 1993. The subsequent report, The Macpherson Report published on 24 February 1999, found that the police investigation
into Stephen's murder was “marred by a combination of professional
incompetence, institutional racism and a failure of leadership by senior
officers. Since then the problems within an organisation have often proved to be an alibi for personal incompetence. Social services departments` failures have been used to some extent as excuses for those working within them in cases of grooming of girls by mainly Pakistani men. Comment on the news earlier this week that Alison Saunders Director of Public Prosecutions aka chief of the CPS has focused on the failures of the institution rather than the serial incompetence and rotten decision making of the lady herself. This derogation of responsibility is a further sign of the moral authority we vest in senior public servants and politicians being diminished. What begins at the top as sure as night follows day percolates through society like a hot knife through butter so that individual responsibility becomes a rare commodity and those abusing it are all the more likely to evade their just deserts. This is what we are becoming; a country in decline where nobody is blamed for the problems and institutions continue to fail.

Tuesday, 3 April 2018

The National Secular Society has raised an interesting point about the appropriateness of a judge`s comments. At a recent sentencing hearing Mr Justice Haddon-Cave sentenced the Parsons Green bomber Ahmed Hassan to life in prison and ordered him
to serve a minimum of 34 years. As he closed his sentencing remarks at
the Old Bailey he told Hassan he "should understand that the Qur'an is a
book of peace; Islam is a religion of peace". Personally I am atheistic in my approach to the wonders of life and how we live it but IMHO castigating the judge for what I consider as pertinent comments was misplaced zeal and an over reaction. NSS chief executive Stephen Evans wrote that the judge's remarks had
"undermined the principle of judicial impartiality and the universal
applicability of secular law" and added "judicial office holders must be expected to treat everyone equally before the law, regardless of religion or belief". I wonder therefore if Mr Evans considers hate crimes to be unlawful pieces of legislation or to be correct "religiously or racially aggravated offences"? In such cases whether one agrees or not the motivation of the offender is an important consideration and is likely to increase the sentence imposed. I will not repeat many other remarks in the report as there is a whole page on this topic on site. Suffice to say the NSS has shot itself in the foot in this matter and will not encourage wavering believers to its cause by this ill thought out diatribe against a judge doing his job on behalf of all of us secularists included.